Transparency and Cooperation Between Lawyers in the Collaborative Process
The adversarial model is the model on which Ontario’s legal system is based and remains the model taught in Law schools to this day. It centers around two parties opposing each other. Opposing values. Opposing opinions. Opposing goals. The strange thing about the adversarial model in family law is that the clients were once a family with a shared future. And while many couples choosing to divorce have differing opinions, their goals and even values can often still be similar. In an alternative dispute resolution process, clients do not oppose each other and instead, together with their lawyers, are working together on a resolution.
In an adversarial system, notions of transparency and open communication between the lawyers in a case are radical and almost unheard of. Having had the experience recently of just such transparency and seeing its positive results in a Collaborative Divorce setting, I am eager to share what I learned with you!
Forming a team
The family law case I’m referring to is one where the parties had chosen to use the collaborative process, having lawyers work together as a team rather than ‘adversarially’ to resolve all issues, but the idea of a team is sometimes easier said than done. Lawyers, having been trained through law school, bar admission, articling and often years of experience in the adversarial methodology, often have difficulty taking off their “lawyer hat”.
What brought these clients to us
Our clients had signed a marriage contract when they had gotten married some years before, but now, the husband felt that the marriage contract was unfair and that he had been forced into signing it by the wife. The wife, my client, was willing to see what the law would say about it and wanted the Separation Agreement to be fair to both of them.
Wait a minute. Aren’t you the same lawyer?
An early transparency challenge arose in the first four-way collaborative meeting. As a twist, the husband’s lawyer was actually the same lawyer he used for the marriage contract! I told them I had reviewed the marriage contract and that, in my opinion, it had been properly done and met all the requirements of a valid and binding marriage contract. I also said that, if this were a Court process, the husband’s lawyer would be subpoenaed as a witness to give evidence as to the circumstances of the making of the contract and certainly couldn’t be his lawyer now in the negotiation of a separation agreement!
(As a sidebar, this is one of the benefits of using an ADR process such as collaborative: the husband was able to retain the same lawyer.)
The husband’s lawyer and I had discussed this in advance of the meeting and although I’m sure this was difficult for the lawyer and her client to hear (although it was a compliment to the husband’s lawyer’s good work on the marriage contract!), they didn’t object or get defensive. What I said was correct and because we had a collaborative agreement, everyone knew that should we be unsuccessful in our negotiations, our clients would be forced to retain new lawyers for litigation. This was an example of transparency in discussions. We could speak freely and have open communication for informed and productive settlement discussions without fear that it would resurface in Court.
No Need for Silence
In another four-way meeting, we discussed the circumstances while making the marriage contract. The husband began to say that he had been under duress when he had signed the contract when his lawyer started to intervene to stop him from saying anything further. This is a typical tactic in the traditional legal process. I quickly intervened, reminding her that this was a collaborative process, that all was off the record, and that we would not be the parties’ lawyers in any event should this go to Court. The husband’s lawyer acknowledged this and immediately relaxed and let her ‘litigation guard’ down so I could resume my questioning and the husband could resume talking. The discussion which ensued was very helpful to all of us having all the facts, as well as the perspectives and interests of the parties, to facilitate fruitful negotiations. In a traditional adversarial legal process, this information would have been withheld as part of the husband’s lawyer’s strategy.
Lawyers Need Set the Tone
There were several other examples of transparency between the lawyers (like when we learned new pension laws and regulations together to ensure our clients were protected), but the transparent and open communication between the lawyers didn’t always extend between the parties! The parties themselves were far more circumspect and non-transparent in the four-way meetings than the lawyers. Perhaps it was the influence of TV shows and the Media, all cloaking communications in a case in defensive and aggressive secrecy, that influenced them in this. Perhaps also it was their mistrust of each other (as often happens in the breakdown of a marriage) that led to them being reserved in the meetings. I believe that the friendliness, respect, open communication and transparency between the lawyers is what kept the flow of the meetings and progress going.
The case settled in a relatively short time, in a remarkable aura of civility and respect, and both my colleague and I agreed that we would be pleased to work with each other again. This ongoing positive relationship between lawyers was one of Stu Web’s objectives when he founded Collaborative Process.
I believe it was the transparency and openness in the lawyer-to-lawyer communications that was material to the success of the process and its outcomes. The case settled on a win/win basis for both parties, in that both of their interests and needs were met in the terms of settlement. It is interesting to note that the law proved far better for my client than the marriage contract, and that the husband, in the end, settled on the implementation of the terms of the marriage contract rather than the law. However, my client was also satisfied with that, as she told me she got the closure she wanted and the confirmation she needed that the terms of the final settlement were fair to both parties.
The next steps are to educate the public that has been raised on Perry Mason dramas and “War of the Roses” movies that, in ADR processes, transparency and open communication can lead to positive results for all.
Anne Freed is a senior family law lawyer, collaborative lawyer and mediator. Anne has practised family law for over 35 years. She is a highly experienced negotiator and litigator with extensive training in her practice areas. Anne has a Law degree, a Masters of Law in Alternate Dispute Resolution (ADR), and extensive training in mediation and collaborative practice.